Complainant

Respondent

Parties

Sean Hallinan

National Museum Of Ireland

Representatives

Gilvarry & Associates

Mason Hayes & Curran

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00021988-001

21/09/2018

The complainant commenced employment on 3rd September 2002 and his employment ended on 21 March 2018. The complainant submits that he was discriminated against on the grounds of age in his conditions of employment and by his dismissal.

Preliminary Issue:

In response to the respondent’s preliminary issue that the complaint was out of time it was submitted by the complainant’s representative that the complainant’s representative submitted the complaint on behalf of the complainant on time, electronically on the night of 20th September 2018. It was asserted that the complainant’s representative had hit the submit button twice and an automatic email acknowledgement only came through after midnight at 00:05:23 on 21th September 2018 and a second acknowledgement was received a very short time later at 00:05:35. The complainant submitted that it would be unfair to penalise the complainant owing to delays with an IT system.

Substantive Issue:

The complainant submitted that the complainant had been discriminated against by terminating his employment as he had reached the age of 65 and by discriminating against him in offering him a fixed term contract which only put him at point 1 of the salary scale.

The complainant had a loyal dedicated service with the respondent and was not entitled to receive a state pension until he turned 66.   The complainant would have been willing to work until the age of 70 and he was in excellent health and perfectly capable of doing the role. It was outlined that the complainant loved his job and had always received excellent feedback for the job he did.

An interim arrangement was put in place while the government sought to commence the relevant legislation to extend the mandatory retirement age to 70 whereby existing staff could stay in employment until they reached 66 at which point they would be in a position to avail of their full pension requirements. Employees who wished to stay on had to sign agreements that they would not seek to stay on past the age of 66 if an extended retirement age was introduced.

The complainant felt he had no option but to leave as the conditions of employment offered to him were economically not sustainable as the complainant travels 50km to and from work every day and the resulting fixed term contract to stay on till 66 would result in a reduction of pay of €250.00 per week. The terms which he was offered to stay on, would have meant that he would remain in his role but would be supervising employees who were younger and less experienced than him but for less money. There was in effect direct discrimination of the complainant with regards to his conditions of employment on the grounds of age.

It was submitted that both the fixing of a compulsory retirement age and the offering of a fixed term contract should be objectively justified and that the respondent had failed to objectively justify.

In seeking to objectively justify offering a fixed term contract the respondent is required to show if the aim pursued is legitimate, is it objectively and reasonably justified by that aim, and is the offering of a fixed term contract appropriate and necessary. The complainant submitted that the respondent failed to review same and to establish a legitimate employment policy the employer must be able to provide concrete evidence to show a direct link between objective justification and the legitimate aim.

Case law cited included O’Mahony v Southwest Docks on Call Ltd DEC-E2014-031, Transdev Light Rail Ltd v Michael Chrzonowski DEC-E2016-070

Preliminary Issue:

The respondent raised a preliminary issue that the complainant was out of time as the complaint had been submitted on 21st September 2018 and that the complainant’s employment had ceased on 21 March 2018.

Substantive Issue:

The respondent refuted the allegations.

It was submitted that the complainant’s contract of employment clearly stated that there was a compulsory retirement age of 65 years as per the Civil Service Act 1956. It was submitted that new entrants after 1 April 2004 did not have compulsory retirement ages within their contract but this did not apply to the complainant as he commenced employment in 2002. There are various rules that apply to the retirement of public servants as set out in the Report of the Interdepartmental Group on Fuller Working Lives and there is very little flexibility to allow people to stay on beyond normal retirement age. Workforce planning is a central consideration as regards compulsory retirement ages in the public service.

The respondent has a policy of enforcing its contractual retirement clause such that no custom or practice has been established where employees employed before 1 April 2004 worked beyond their 65th birthday and the complainant did not have any legitimate expectation to work beyond his 65th birthday and the complainant retired on his 65th birthday.

On 5th December 2017 the government decided that the compulsory retirement age of most public servants recruited before 1 April 2004 would be increased to age 70. While drafting this legislation the government introduced interim arrangements for serving public servants to enable them to stay in employment until 66 which would include the complainant as per circular 21/2017.

This interim period of retention was not reckonable for pension purposes and officers who availed of this would be placed on the minimum point of the scale. On 12 February 2018 the respondent emailed the complainant the relevant forms to be filled in in advance of retirement with a copy of the circular 21/2017 also enclosed. The complainant choose of his own volition to retire on 22 March 2018.

At all times the decision not to avail of the offer to continue in employment was the decision of the complainant and the complainant had been made aware by the respondent that he could continue to work beyond his 65th birthday.

It is objectively justifiable to include a mandatory retirement age to achieve certainty of administration across the public sector.   The complainant was consulted with and options given to him but the complainant made a decision not to avail of the facility afforded by Circular 21/2017 and he was treated the same as other employees.

In response to the complainant’s submission that the respondent failed to follow the code of practice on longer working, it was submitted that such a code clearly differentiates between public and private sectors and caters for situations where no contractual retirement age exists which did not arise in this instant case. It was denied that there is required to be objective justification for the issuing of a fixed term contract.

It was submitted that the complainant did not accept the offer of work owing to the distance that he would have to travel. It was submitted that employees had to sign acceptance agreement of the terms of the fixed term contract which included “retention under the terms of this circular is at the minimum point of the relevant pay scale”

Case law cited included Longford County Council v Michael Neilson UDD1950,Hornfeldt v Posten Meddelande AB Case C-141 CJEU.

The complainant submits that he was discriminated against on the grounds of age by his dismissal and by the conditions of employment offered to him by way of a fixed term contract. The respondent refutes the allegations.

Section 6(1) of the Employment Equality Acts 1998 and 2004 (the Act) provides, -

‘‘(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’)which—(i) exists,(ii) existed but no longer exists,(iii) may exist in the future, or(iv) is imputed to the person concerned,

Section 34(4) of the Act provides for certain savings and exceptions relating to the family, age and disability grounds. Subsection (4) of that Section provides: -

(4) Without prejudice to subsection (3) , it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees if —

(a) it is objectively and reasonably justified by a legitimate aim, and

(b) the means of achieving that aim are appropriate and necessary.

The Act gave effect in domestic law to Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (the Directive).

Recital 14 provides: -

“This Directive shall be without prejudice to national provisions laying down retirement ages.”

Recital 25 provides: -

The prohibition of age discrimination is an essential part of meeting the aims set out in the Employment Guidelines and encouraging diversity in the workforce. However, differences in treatment in connection with age may be justified under certain circumstances and therefore require specific provisions which may vary in accordance with the situation in Member States. It is therefore essential to distinguish between differences in treatment which are justified, in particular by legitimate employment policy, labour market and vocational training objectives, and discrimination which must be prohibited.

Article 6 (1) of the Directive provides: -

Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.

Section 85A (1) of the Act states: “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”   This means that the Complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the Respondent. In Determination EDA082 McCarthy v Cork City Council the Labour Court pointed out that at the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the facts proved. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.

In Melbury Developments v Arturs Valpeters the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a complainant "must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn". It added that "the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

The complainant’s contract of employment contained a clause that referenced “retirement is compulsory on reaching 65 years of age”. There was no evidence submitted that employees similar to the complainant remained on after the complainant age, in any capacity other than what was offered to the complainant within a fixed term contract.

In Earagail Eisc Teoranta v Richard LettEDA1513 the Court held that as a matter of general principle, a termination of employment by way of retirement should be distinguished from a dismissal on grounds of age. A retirement occurs where the employment comes to an end pursuant to a condition of employment which limits an employee’s tenure to the point at which they attain a specified age. It held that a term of employment regarding a retirement age, within the provision of Section 34 (4) of the Act, can be provided in an employee’s conditions of employment either expressly or by implication.   The complainant also attended a retirement talk and an email to him on 12 February 2018 referred to “our conversation regarding your retirement…in March 2018”.

Having considered the evidence I cannot accept that the complainant was not aware of his forthcoming retirement by the existence of a contract, his attendance at a retirement talk and through contact with the respondent. I am satisfied that there was a retirement age in existence in respect of the Complainant and that the Complainant knew or ought to have known of its existence for his category of employment. In the circumstances, I find that the complainant has failed to establish a prima facie case of discrimination on the age ground with regards to his dismissal and I find that the complainant was not discriminated against.

The second element of the complainant’s complaint is that offering a one year fixed term contract at the minimum the point of the scale was discriminatory on the grounds of age. The complainant determined that it would not be financially worthwhile for him to accept this contract. It was also detailed that the use of a fixed term contract at the salary offered was not “objectively and reasonably justified by a legitimate aim” of the employer. The respondent submits that there is no requirement for a fixed term contract to be objectively justified.

I note that the purpose of offering a fixed term contract was to afford a group of employees who were required to retire at 65, the opportunity to continue working until they qualified for the contributory state pension at 66. I note that 33% of employees nationally availed of such contracts. and that the complainant did not. To avail of such a fixed term contract the complainant was required to accept the terms of this contract which included “ “I accept the terms and conditions of retention as set out in this Circular. In particular I understand that retention under this Circular does not confer any rights on me to any new arrangement that may be provided for In future legislation in relation to compulsory retirement age, whether or not I am still retained under the terms of this Circular on the date of commencement of that legislation. I understand that retention is for a maximum of one year from the date of my 65th birthday until I reach the age of 66 (the current age of eligibility for the CSP). I also understand that retention under the terms of this Circular is at the minimum point of the relevant pay scale and that pension abatement rules will apply.”

I find that the complainant was aware of what he would be signing up for if he accepted the fixed term contract and as was his right, he choose not to accept such terms. The complainant has failed to establish a prima facia case of discrimination on the age grounds with regard to conditions of employment and I find that the complainant was not discriminated against.

I find that the complainant has failed to establish a prima facia case of discrimination and that the complainant was not discriminated against by dismissal or conditions of employment.

Equality, dismissal, conditions of employment